Ex-state school superintendent, board take arguments to WV Supreme Court

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Former West Virginia Superintendent of Schools Jorea Marple and the state Board of Education are preparing to square off again, this time in front of the Supreme Court.

Marple sued the board and then-president L. Wade Linger for wrongfully terminating her “at-will” employment in November 2012. She contends board members secretly plotted to get rid of her, saying she had no prior knowledge that her job was at risk and no opportunity to prepare and present a defense.

She says her professional reputation was irreparably damaged.

Kanawha County Circuit Judge James Stucky refused in November 2014 to dismiss the complaint, telling the state Board of Education it cannot claim sovereign immunity because the board and its members are insured by the West Virginia Board of Risk and Insurance Management, nor is it entitled to qualified immunity. The board is appealing that ruling, with oral arguments slated for Oct. 6.

Sovereign immunity prevents government departments and agencies from being sued without their consent, while qualified immunity shields government officials for actions they may take even if those actions are later found to be unlawful, providing they do not violate established law — in other words, a board member could be liable only if a reasonable person should have known what he was doing violated clearly established law.

On appeal, the board contends the lower court was wrong to find the liability insurance exception applied to them; to reject the board’s argument that it’s entitled to qualified immunity with regard to terminating Marple’s at-will employment; and to deny Linger’s claim of qualified immunity arising from those same discretionary acts because they were done in his official capacity as the then-board president.

‘New direction’

Marple’s dismissal came months after an administration-initiated efficiency audit of the Department of Education’s performance suggested the state wasn’t getting much of a bang for the billions it was spending on primary and secondary education in West Virginia.

Though Marple had been given high marks on her annual review, months later board members twice voted to terminate her contract. The initial vote was rescinded after allegations the board had violated the state’s public meetings law, prompting them to revisit the issue weeks later. The outcome, however, remained the same.

Afterward, Linger defended the board’s decision, pointing out West Virginia students ranked below the national average in 21 of 24 categories measured by the National Assessment of Education Progress; Education Week’s Quality Counts Report had given the state an F grade for K-12 achievement; and a statewide graduation rate of just 78 percent. One in four high school students in West Virginia did not graduate on time.

“We are not saying that Superintendent Marple is any more responsible than governors, legislators, educators or board members for these shortcomings,” he’d added at the time. “We are not here to affix blame today. However, we are charged with the general supervision of schools in West Virginia and we think the people of West Virginia deserve to have these problems fixed. The board determined that in order to fix these problems we needed to head in a new direction with new leadership.”

Linger also alluded to a lack of urgency and resistance to change within the department, adding, “considering everything just outlined in this statement, I believe we needed a change in direction and in order to do that, we needed a change in leadership.”

‘Summarily dismissed’

Marple responded by suing the board, claiming even an “at-will” employee should be protected by good faith and fair dealing.

“None of the general or specific foundations for plaintiffs firing were ever given her by either president Linger or any board member,” she said at one point. “Plaintiff was never provided an opportunity to digest whatever the ‘new direction’ was and offer to facilitate it or refuse to do so. Instead, she was summarily dismissed with less than 24 hours notice irrevocably staining a brilliant career in education of over three decades.”

She claims the reasons and statistics cited by Linger and adopted by majority vote of the board “were false (and) had no relationship to her tenure as superintendent.” Her “status as an at-will employee of the board invests her with both property and liberty rights rooted in the state constitution,” they wrote. “An effort to curtail those rights or either of them demands (she be availed) of due process proceeding ... .”

Her lawyers said the board and Linger cannot claim immunity. Since the board and its members are insured by the WV Board of Risk & Insurance Management, they said sovereign immunity does not apply. They also contend qualified immunity does not protect discretionary acts that violate established constitutional or statutory rights.

“No absolute or qualified immunity protects these petitioners” from the harm done to Marple’s rights and reputation, they said.

Attorneys representing the board and Linger, meanwhile, contend that even if the insurance policy were to preclude sovereign immunity, Marple served at the will and pleasure of the board so any decision to terminate her employment would fall within the guidelines of qualified immunity.

‘Open the court’s floodgates’

Marple, they said, did not suggest the board or Linger acted outside the scope of their official duties.

“(Her) specific allegations against Linger include that he called for the Nov. 29, 2012 meeting; he called for a motion to enter executive session on Nov. 15 and 29, 2012; he announced (her) employment was terminated on Nov. 15, 2012; he recommended (her) employment be terminated on Nov. 29, 2012; he voted to terminate (her) employment; and he read his statement explaining the board’s decision to terminate (her) employment,” they wrote. “These allegations without question involve Linger’s discretionary actions as board president.”

“As board president, he is tasked with the authority to make decisions on whether to retain a person as superintendent, a position which is both constitutionally and statutorily prescribed to be an at-will position ... thus Linger is entitled to the defense of qualified immunity for these discretionary functions,” they argued. “Further, Linger and the board are entitled to qualified immunity from (Marple’s) claims for false light and defamation as those claims are premised upon Linger’s statement adopted by the board. The statement was made and adopted by the board during the course of terminating (her) employment. Thus, these acts are discretionary and subject to the defense of qualified immunity.”

Attorneys for Linger and the board say Marple’s allegations address actions that fell within their rights and responsibilities, and “so long as those discretionary actions did not violate (her) clearly established rights or laws or were otherwise fraudulent, malicious or oppressive” they would be protected by qualified immunity.

“By depriving (the board and Linger) of qualified immunity, the circuit court dishonors the goal of qualified immunity and the public policy embodied in the clear constitutional and statutory prescription that the position of superintendent is an at-will position,” they contend. “Allowing (her) to proceed on her meritless claims precludes the board, or any other state agency having similar constitutional and statutory authority, from discharging an at-will employee, essentially creating an unintended tenured position ... .”

Allowing Marple’s case to proceed “would likely open the court’s floodgates” to similar lawsuits by at-will employees “who are disgruntled by being discharged from their at-will position which they are not entitled to maintain indefinitely,” they said.